Presumption that Power to Legislate Generally not feasible

Constitutional and Administrative Law, 8th edn (2001), p 80. He also prays in aid the observations of Lord Donaldson of Lymington speaking extra-judicially in support of his Parliament Acts (Amendment) Bill (HL Hansard, 19 January 2001, cols 1308-1309):

"As your Lordships well know, it is a fundamental tenet of constitutional law that, prima facie, where the sovereign Parliament - that is to say, the Monarch acting on the advice and with the consent of both Houses of Parliament - delegates power to legislate, whether to one House unilaterally, to the King or Queen in Council, to a Minister or to whomsoever, the delegate cannot use that power to enlarge or vary the powers delegated to him. The only exception is where the primary legislation, in this case the 1911 Act, expressly authorises the delegate to do so. In other words there has to be a Henry VIII clause."

[R v Burah (1878) 3 App Cas 889, 904-905; Taylor v Attorney General of Queensland (1917) 23 CLR 457; McCawley v The King [1920] AC 691, 703-704, 710-711; Minister of the Interior v Harris 1952 (4) SA 769, 790; Clayton v Heffron (1960) 105 CLR 214 and Bribery Commissioner v Ranasinghe [1965] AC 172, 196-198. ]

Jackson & Ors v. Her Majesty's Attorney General [2005] UKHL 56 (13 October 2005) 

URL: http://www.bailii.org/uk/cases/UKHL/2005/56.html Cite as: [2005] 4 All ER 1253, [2006] 1 AC 262, [2005] UKHL 56, [2005] 3 WLR 733 ]  The decision of the Privy Council in Bribery Commissioner v Ranasinghe [1965] AC 172 is also important. It was an appeal from Ceylon. An Act was passed but not in conformity with the constitutional legislative procedure. Lord Pearce delivered the judgment of the Privy Council. He observed, at pp197-198:

"A legislature has no power to ignore the conditions of law-making that are imposed by the instrument which itself regulates its power to make law. This restriction exists independently of the question whether the legislature is sovereign, as is the legislature of Ceylon, or whether the constitution is 'uncontrolled,' as the board [in McCawley's case [1920] AC 691] held the constitution of Queensland to be. Such a constitution can, indeed, be altered or amended by the legislature, if the regulating instrument so provides and if the terms of those provisions are complied with: and the alteration or amendment may include the change or abolition of those very provisions. But the proposition which is not acceptable is that a legislature, once established, has some inherent power derived from the mere fact of its establishment to make a valid law by the resolution of a bare majority which its own constituent instrument has said shall not be a valid law unless made by a different type of majority or by a different legislative process."

This dictum is consistent with the analysis already explained.

Presumption that Parliament does not want irrational results

It was observed in the case of Jackson & Ors v. Her Majesty's Attorney General [2005] UKHL 56 (13 October 2005) 

URL: http://www.bailii.org/uk/cases/UKHL/2005/56.html Cite as: [2005] 4 All ER 1253, [2006] 1 AC 262, [2005] UKHL 56, [2005] 3 WLR 733 that Parliament does not want injustice or any irrational results from any statute.It is to be treated with this assumption in mind and suitable interpretation be given accordingly.{blogger]

It is a well long-established principles of statutory interpretation, the courts will often imply qualifications into the literal meaning of wide and general words in order to prevent them having some unreasonable consequence which Parliament could not have intended. He cites such compelling authority as Stradling v Morgan (1560) 1 Plow 199; R (Edison First Power Limited) v Central Valuation Officer [2003] UKHL 20, [2003] 4 All ER 209, para 25; R v Secretary of State for the Home Department, Ex p Pierson [1998] AC 539, 573-575, 588; R v Secretary of State for the Home Department, Ex p Simms [2000] 2 AC 115, 131; and R (Morgan Grenfell & Co Ltd) v Special Commissioner of Income Tax [2003] 1 AC 563, paras 8, 44-45.

"that general words such as section 2(1) should not be read as authorising the doing of acts which adversely affect the basic principles on which the law of the United Kingdom is based in the absence of clear words authorising such acts. There is no more fundamental principle of law in the UK than the identity of the sovereign body. Section 2(1) should not be read as modifying the identity of the sovereign body unless its language admits of no other interpretation". 

Presumption that Parliament observed procedures for enactment of Law

In the case cited below it was aptly observed by LORD BINGHAM OF CORNHILL that Judiciary has no authority to look into Parliamentary proceedings for the purpose of enactment and process. Courts have no powers whether explicit or implicit in this regard.

In Pickin v British Railways Board [1974] AC 765  it was decided that

"the courts in this country have no power to declare enacted law to be invalid"

(per Lord Simon of Glaisdale at p 798).

In Pickin, unlike the present case, it was sought to investigate the internal workings and procedures of Parliament to demonstrate that it had been misled and so had proceeded on a false basis. [ see Lord Reid at p 787, Lord Morris of Borth-y-Gest at p 790, Lord Wilberforce at p 796, Lord Simon of Glaisdale at p 800 and Lord Cross of Chelsea at p 802. Lord Reid quoted with approval a passage of Lord Campbell's opinion in Edinburgh and Dalkeith Railway Co v Wauchope (1842) 8 Cl & F 710, 725] This was held to be illegitimate where he said:

"All that a Court of Justice can do is to look to the Parliamentary roll: if from that it should appear that a bill has passed both Houses and received the Royal assent, no Court of Justice can inquire into the mode in which it was introduced into Parliament, nor into what was done previous to its introduction, or what passed in Parliament during its various stages through both Houses."

Here, the court looks to the parliamentary roll and sees bills (the 1949 Act, and then the 2004 Act) which have not passed both Houses. The issue concerns no question of parliamentary procedure such as would, and could only, be the subject of parliamentary inquiry, but a question whether, in Lord Simon's language, these Acts are "enacted law." 

Thus it is a strong presumption and works without any rebutt.It is based on the presumption that Parliament makes no mistakes. It may not be derived on any presumption but It is observed.

Presumption that Delegated Power would be employed Rationally

The Court has historically been reluctant to entertain facial attacks on statutes, i.e., claims that a statute is invalid in all of its applications. Our normal approach has been to determine whether a law is unconstitutional as applied in the particular case before the Court.This rule is also the usual approach we follow when reviewing laws that require licenses or permits to engage in business or other activities. In New York ex rel. Lieberman v. Van De Carr, [1905] USSC 187; 199 U.S. 552, 26 S.Ct. 144, 50 L.Ed. 305 (1905), for example, plaintiff in error was convicted of selling milk in New York City without a permit. Plaintiff in error claimed before this Court that the licensing law vested arbitrary power in an administrative board to select those who would be permitted to sell milk. This Court's response was:

"[Prior] cases leave in no doubt the proposition that the conferring of discretionary power upon administrative boards to grant or withhold permission to carry on a trade or business which is the proper subject of regulation within the police power of the state is not violative of rights secured by the Fourteenth Amendment.

 There is no presumption that the power will be arbitrarily exercised, and when it is shown to be thus exercised against the individual, under sanction of state authority this court has not hesitated to interfere for his protection, when the case has come before it in such manner as to authorize the interference of a Federal court." Id., at 562, 26 S.Ct., at 146.

There being no showing that the law had been unconstitutionally applied to plaintiff in error, his conviction was affirmed. "One who is required to take out a license will not be heard to complain, in advance of application, that there is a danger of refusal. He should apply and see what happens." Highland Farms Dairy, Inc. v. Agnew, [1937] USSC 65; 300 U.S. 608, 616-617[1937] USSC 65; , 57 S.Ct. 549, 553[1937] USSC 65; , 81 L.Ed. 835 (1937) (citations omitted). Other cases are to the same effect. Thus, the usual rule is that a law requiring permits for specified activities is not unconstitutional because it vests discretion in administrative officials to grant or deny the permit. TheConstitution does not require the Court to assume that such discretion will be illegally exercised. Douglas v. Noble, [1923] USSC 38; 261 U.S. 165, 170[1923] USSC 38; , 43 S.Ct. 303, 305[1923] USSC 38; , 67 L.Ed. 590 (1923); Lieberman, supra, 199 U.S., at 562, 26 S.Ct., at 146.

Presumption that Greater power Includes Lesser Power- US Courts

The principle that the grant of a greater power includes the grant of a lesser power is a bit of common sense that has been recognized in virtually every legal code from time immemorial. It has found modern expression primarily in the realm of constitutional law. See, e.g., City of Lakewood v. Plain Dealer Publishing Co., [1988] USSC 123; 486 U.S. 750, 763[1988] USSC 123; , 108 S.Ct. 2138, 2147[1988] USSC 123; , 100 L.Ed.2d 771 (1988) (commenting that the power to prohibit speech entirely includes the lesser power to license it at the government's discretion); Posadas de Puerto Rico Assocs. v. Tourism Co., [1986] USSC 169; 478 U.S. 328, 345[1986] USSC 169; , 106 S.Ct. 2968, 2979[1986] USSC 169; , 92 L.Ed.2d 266 (1986) (holding that the power to ban casino gambling includes the lesser power to prohibit advertising of casino gambling).

While this principle has nested less frequently in the criminal law context, it is fully applicable in that milieu. To illustrate, we use an example that bears a strong family resemblance to the problem at hand. The federal sentencing guidelines originally stated that "an extraordinary physical impairment may be a reason to impose a sentence other than imprisonment." U.S.S.G. Sec. 5H1.4, p.s. (Nov. 1990). Three courts of appeals, including this one, refused to understand this provision to require an all-or-nothing choice between imposing an incarcerative sentence within the guideline range or imposing no prison sentence. The courts reasoned that, despite the unvarnished language of the provision, the greater departure (no incarceration) necessarily included the lesser departure (a prison sentence below the bottom of the guideline sentencing range). See United States v. Slater, [1992] USCA10 876; 971 F.2d 626, 635 (10th Cir.1992); United States v. Hilton, [1991] USCA1 494; 946 F.2d 955, 958 (1st Cir.1991); United States v. Ghannam, [1990] USCA4 614; 899 F.2d 327, 329 (4th Cir.1990)

Literal Rule of Construction: Criticism

But the literal rule has also been subjected to severe criticism:

(l) The most fundamental objection to the rule is that it is based on a false premise, namely that words have plain, ordinary meanings apart from their context. Professor H.L.A. Hart of Oxford has argued that a word has a core meaning 'or standard instance in which no doubts are felt about its application' even though at the edges there is a margin of uncertainty. But Professor Lon Fuller has contested this by urging that meaning attaches not to individual words but to sentences and paragraphs, and that 'surely a paragraph does not have a "standard instance" that remains constant whatever the context in which it appears.' If a statute seems to have a core meaning 'this is because we can see that, however one might formulate the precise objective of the statute, this case would still come within it.'

(2) Those who apply the literal approach often talk of using the 'dictionary meaning' of the words in question, but dictionaries normally provide a number of alternative meanings.

(3) The plain-meaning approach cannot be used for general words, which are obviously 

capable of bearing several meanings.

(4) Not infrequently the courts say that the meaning of the words is 'plain' but then disagree as to their interpretations.

(5) The plain-meaning theory may be acceptable outside the courtroom, since it could be true that a high proportion of statutory materials and other legal documents can in fact be interpreted without recourse to any mischief or golden rule. But in the court room there are by definition two parties, usually represented by counsel, arguing over the meaning of the relevant passage. It makes little sense to dispose of the issue between them by reference to the plain meaning when there are two meanings in issue.

The most common retort from those who favour the literal approach is that, in spite of some problems, it promotes the certainty which is one of the chief objectives of any legal system. But does it?

If all judges always followed the policy of literalism, it may be that there would be some gain in certainty. But in practice they do not. Even the most diehard advocates of the literal approach sometimes lapse into some alternative method. One commentator has written '[T]he doctrine of literalness can never be applied successfully to general words. For they always include something more than the scope and object of the statute require and so it leads to ridiculous results.

' Judges were torn between a feeling of obligation to adhere to the doctrine and a feeling of revolt against what they regarded as an absurdity and injustice. So if literalness seemed too ridiculous or threatened things which the judge regarded as fundamental, he exerted himself to escape its conclusion. Even those judges who insisted strongly upon the principle of literal adherence to the words, deserted it in such circumstances.' Lord Tenterden, who fathered the doctrine, sometimes found that literal meanings could not have been intended. And Lord Bramwell, who affirmed the doctrine with his usual vigour and challenged anyone to show him an absurdity so great as to entitle him to depart from the plain meaning, had some interesting lapses ... Lord Halsbury stated the doctrine of literalness as uncompromisingly as anyone. But in a case before the House of Lords in l890 he deserted it and appealed to the "equity of the statute."'

. . .

And at 53:

The literalist approach makes too little allowance for the natural ambiguities of language, for the frailties of even the most skilled of draftsmen and for the impossibility of foreseeing future events. In its l969 report The Interpretation of Statutes, the Law Commission said:
  To place undue emphasis on the literal meaning of the words of a provision is to assume an unattainable perfection in draftsmanship; it presupposes that the draftsmen can always choose words to describe the situations intended to be covered by the provision which will leave no room for a difference of opinion as to their meaning. Such an approach ignores the limitations of language, which is not infrequently demonstrated even at the level of the House of Lords where Law Lords differ as to the so-called 'plain meaning' of words [para. 30]. 

 

The literal approach is based on a narrow concentration on the actual words used, to the exclusion of the surrounding circumstances that might explain what the words were actually intended to mean.

Finally, at 54:

A final criticism of the literal approach to interpretation is that it is defeatist and lazy. The judge gives up the attempt to understand the document at the first attempt. Instead of struggling to discover what it means, he simply adopts the most straightforward interpretation of the words in question - without regard to whether this interpretation makes sense in the particular context. It is not that the literal approach necessarily gives the wrong result but rather that the result is purely accidental. It is the intellectual equivalent of deciding the case by tossing a coin. The literal interpretation in a particular case may in fact be the best and wisest of the various alternatives, but the literal approach is always wrong because it amounts to an abdication of responsibility by the judge. Instead of decisions being based on reason and principle, the literalist bases his decision on one meaning arbitrarily preferred.

An example of the use of the literal approach (there are many examples) is the case of Gibiino v. Barcellona (l973) 35 D.L.R. (3d) 477 (Man. Q.B.) involving the interpretation of the Limitation of Actions Act, which deals generally with the rules about time limits within which you have the right to sue. The basic rule for torts, for instance, is 2 years. But then you must ask - 2 years from the time the accident happened, or 2 years from the time when the damages were, or could have been, reasonably discovered?

There are lots of cases sorting this problem out. The rule appears to be that if the gist of the action is damages, like the tort of negligence, for example, then the time of reasonable discovery of damages may be the relevant time. Thus in Long v. Western Propeller Co. (l968), 63 W.W.R. l46 (Man. C.A.) the defendants negligently overhauled an aeroplane and negligently certified it as airworthy in l960. The plane crashed in l964. Action was brought by the owner of the plane, the pilot and the passenger in l966. It was held that the cause of action arose when the crash occurred.

Anyway, the facts of Gibiino involve a 2 year old infant who was injured on June 2l of l969 

when the porch of a home collapsed, and it was alleged that the collapse was due to the negligence of the defendant in effecting repairs to it earlier that year. Now the problem was that the Statement of Claim was not issued until July of l97l, slightly more than 2 years later. But, the Limitation of Actions Act had a special provision for people who have a "disability." "Disability" was defined in the Act as infancy or mental disorders. So in this case we are dealing with an infant.

Now what did the Act say was the limitation period for people with a disability, like infants? It stated:

"Where a person entitled to bring any action mentioned .... is under disability at the time the cause of action arises, he may bring the action w ithin the time hereinbefore limited with respect to such an action [i.e. within the normal 2   ear period] OR

at any time within 2 years after he first ceased to be under disability."

Stop reading and decide when a child who has not met the normal 2 year requirement, may nevertheless bring an action. What is the "plain meaning?"

Mr. Justice Hunt in Barcellona said:

"It is unfortunate that the provisions of this section leaves a gap, substantial in this case. It appears that Antonio Gibiino can pursue his action, but not until he is l8 years of age, and therefore not until l6 years after the alleged injuries were sustained. It may be that this is a section which should attract the attention of the Legislature as it is unfortunate that the cause of action must stand for l6 years until it is capable of being pursued. In my opinion, the wording of the enactment is clear and the words used must be interpreted in their ordinary grammatical sense. There is nothing in the context to show that they are used in a special sense to enable another interpretation.

I must apply the clear meaning of the Act and, in my opinion, the action is now barred until Antonio Gibiino attains the age of l8 years, unless changes in the legislation permit him to take action earlier.

But you may say, the purpose of the limitation is to prevent plaintiffs from "sleeping on their rights" and then suing when the evidence is stale or destroyed and prejudicing the defendant in his ability to defend the case. Here we have the parties ready to proceed, and the Judge interprets the statute to say that they have to wait l6 years when the defendant may well be dead and the plaintiff has incurred lots of expense as a result of the accident for which he may in law be entitled to compensation.

Justice Hunt, could have taken the mischief approach and implied that the section meant that the infant could sue at any time and up to 2 years after ceasing to be under disability. Perhaps the draftsmen should have included the words "during disability and." But was it improper to imply them?

This formalist interpretation continued to cause hardship with a number of cases, until finally overruled in Mumford v. Health Science Centre [l978] 6 W.W.R. 385 involving the following facts:

On 8th February l972 the mother brought the infant child to the Children's Hospital. The infant was ill with fever and stomach pains. She was examined by Dr. Charles Ferguson, who evidently reached the conclusion that the child did not require admission to the hospital, and he did not admit her. The following day the mother brought the child back to the Children's Hospital. Again Dr. Ferguson examined the child, with the same result as the previous day.

On l4th February l972 the mother brought the infant child to the St. Boniface General Hospital as the child was still ill with fever and stomach pains. The child was admitted as a patient to that hospital. The following day an operation was performed on the child. Since the occurrence of the operation the infant child, who had previously been healthy, normal and intelligent, became a spastic quadriplegic, unable to walk and talk and afflicted with cortical blindness.

It is worthy of note that, following the unfortunate consequences at St. Boniface General Hospital, Dr. Ferguson (the first doctor who had contact with the child) sent a written report dated 22nd February l972 to the St. Boniface General Hospital. I quote that last paragraph of this report:

"I think in retrospect this child almost certainly had acute appendicitis, at the time 

of the original examination which was perhaps not entirely satisfactory due to her attitude and irritability. The subsequent story is most interesting and if I see another child like this she will certainly be admitted for observation and closer monitoring of her systems."

This tells its own story.

Why did the mother not act sooner? The answer to this question is that she did not know that she had a cause of action. She is a native Indian, unfamiliar with legal matters. She did not contact a lawyer until l8th February l975 and then only under pressure from an aunt who was more knowledgeable in such matters. Indeed the mother had been of the belief that if she initiated any type of complaint or action against the hospitals or doctors her child could be taken from her.

[These facts are taken from [l977] l W.W.R. 666 (Man. C.A.)] Monin for the court in Mumford said:

... but the whole purpose of the legislation and of the modern limitation of actions legislation is to provide against the presentation of stale claims when evidence may no longer be available to the defendant litigants who came within the protection of the legislation. To determine that this infant has to wait until she attains the age of eighteen in l988 in order to start afresh, is to encourage stale litigation. There is a disability for infancy which the infant may make use of upon attaining majority, but in the meantime courts should not tell her that she must wait until she has reached the age of majority, when, in effect, through her mother as next friend, she wishes to litigate the matter now and not later.

It is interesting to note that for whatever reason, the actual case did not go to trial till 1991. Mumford lost the case and this result was confirmed by the Manitoba Court of Appeal in 1993. It was held that the Doctors involved had not been negligent. 

Literal Rule of Construction

Meaning :The meaning of the rule is clear from its language. The words are to be interpreted in the literal fashion irrespective of the consequences. This rule stated that the words of a statute must be given their ordinary meaning, no matter what the result.  This also showed the attitude of the judiciary to their role vis a vis Parliament, as Tindal C.J. said in the Sussex Peerage Claim [(1844) 11 Cl & Fin 85, 143.]: 

When words are clear: “The only rule for the construction of Acts of Parliament, is that they should be construed according to the intent of the Parliament which passed the Act.  If the words of the statute are in themselves precise and unambiguous, then no more can be necessary than to expound those words in that natural and ordinary sense [Applied in Cheung Chun-man [1957] HKLR 500, 503.]  The words themselves alone do, in such cases, best declare the intention of the lawgiver”.

Follow the words that are clear :Some of the Courts took an extreme interpretation of the literal rule, which had almost an “Alice in Wonderland” quality to it.  Lord Esher M.R. in R v The Judge of the City of London Court [[1892] 1 QB 273 9 CA.] stated “If the words of an Act are clear, you must follow them, even though they lead to a manifest absurdity.  The Court has nothing to do with the question whether the Legislature has committed an absurdity.”  This view was reinforced in Vacher & Sons Ltd v London Society of Compositors,[ [1913] AC 107, 121-2.]where Lord Atkinson said: 

“If the language of a statute be plain, admitting of only one meaning, the Legislature must be taken to have meant and intended what it has plainly expressed, and whatever it has in clear terms enacted must be enforced though it should lead to absurd or mischievous results.  If the language of this sub-section be not controlled by some of the other provisions of the statute, it must, since its language is plain and unambiguous, be enforced, and your Lordship's House sitting judicially is not concerned with the question whether the policy it embodies is wise or unwise, or whether it leads to consequences just or unjust, beneficial or mischievous.”

Thus Words must be given their plain, ordinary and literal meaning. If the words are clear, they must be applied, even tough the intention of the legislator may have been different or the result is harsh or undesirable. An explanation of the rule was given in the sussex peerage case.[ Sussex peerage case(1844) 1 c1 &fin 85]

The primary rule in construing a section of any statute is that the Court must interpret the Statute in accordance with the plain and ordinary meaning of the words used in it.

[D.P.P. (Ivers) v. Murphy [1998] IEHC 111; [1999] 1 IR 98; [1999] 1 ILRM 46 (7th July, 1998)] 

Undoubtedly, legislative drafting and statutory interpretation are activities which have been deeply marked by their historical origins. The history of statute law-making and the manner in which it was received by the courts demonstrate that statute law, a rarity until the mid-nineteenth century, was seen as an incursion, if not an assault, upon `our lady the common law'. One illustration of this attitude was the so-called `mischief' rule (which developed in the 16th Century) which assumed that statute law would only be called into play to rectify some error which had occurred in the development of the common law.[ Cross, Statutory Interpretation , (3rd ed., Butterworths, 1995) 11-12, traces the history of the mischief rule back to Heydon's case in 1584.] Another was the `golden' rule, which applied in situations in which a literal approach  would lead to an absurd meaning. In other words, the normal approach was to give words in a statute their ordinary meaning, except where that would produce an inconsistency or an absurdity.

[ Statutory Drafting and Interpretation, Report on: Plain Language and the Law (LRC 61-2000) [2000] IELRC 4 (1st December, 2000),

Two Principles of the Rule:This "rule" can  be divided into two principles: 

(a) the principle that requires that the words of a provision be interpreted in their grammatical and ordinary sense, and 

(b) the principle that the grammatical and ordinary sense of the words be followed unless it leads to an absurdity, repugnancy or inconsistency.[581Grey v. Pearson (1857), 6 H.L.C. 60 at 104. ]

Under this approach, words must be given the meaning ascribed to them in ordinary parlance. They must be given the meaning they had on the day of enactment; no additions should be made to the terms of the statute, and the effects of those terms should not be attenuated. [Vachon v. CEIC, [1985] 2 S.C.R. 417]

Plain Meaning and Literal Rule Synonym:The Plain meaning rule is also known as the literal rule, is a type of  construction which dictates that statutes are to be interpreted using the ordinary meaning of the language of the statute. According to the this  rule, words must be given their plain, ordinary and literal meaning. If the words are clear, they must be applied, even though the intention of the legislator may have been different or the result is harsh or undesirable.[ Prof. Larry Solum's expands on this premise[ Legal Theory Lexicon] “Some laws are meant for all citizens (e.g., criminal statutes) and some are meant only for specialists (e.g., some sections of the tax code). A text that means one thing in a legal context, might mean something else if it were in a technical manual or a novel. So the plain meaning of a legal text is something like the meaning that would be understood by competent speakers of the natural language in which the text was written who are within the intended readership of the text and who understand that the text is a legal text of a certain type.”]

The Literal Rule applies words of a statute in their natural and ordinary sense  with nothing added and nothing taken away, even if an inexpedient, unjust or immoral outcome occurs, i.e. the court can neither extend the statute to a casus omissus [an omitted case which should have been, but has not been, provided for in the statute] nor curtail it by leaving out a casus male inclusus [a case that the statute literally includes, though it should not have].